Expert opinion: Council position on the CEAS does not meet human rights requirements

This short report analyzes by way of example why selected new regulations on the Common European Asylum System, as also advocated by the German government, do not meet the requirements of fundamental, human rights and EU law. The regulations on legal protection and the concept of safe third countries do not meet the requirements. A border procedure at the internal border is not possible; even at the external border, such a procedure is always accompanied by detentions and makes violations of fundamental rights and human rights almost unavoidable even beyond that point. You can find the short report here.

The main results at a glance

  1. Insofar as an area of Union law is harmonized, the Federal Constitutional Court also measures Member State conduct against the Charter of Fundamental Rights of the European Union and not against the Basic Law. The monopoly on the rejection of Union law rests with the European Court of Justice.
  2. The fact that the planned appeal against the rejection of an application for international protection in the new draft of the Asylum Procedure Regulation does not have any suspensive effect violates the provisions of Article 13 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union, which in the established case law of the European Court of Human Rights and the Court of Justice of the European Union require an appeal with automatic suspensive effect.
  3. The application of the safe third country concept must always follow a case-by-case assessment.
  4. A third country cannot be considered safe if guarantees guaranteed by the Geneva Convention on Refugees (Refugee Convention) apply only in a partial area, because the Convention requires precisely the gradual inclusion in the legal system of the signatory state in the entire territory of the state in the sense of the principle of equal treatment and requires in particular the freedom of movement in its entire territory.
  5. A correspondence of the CSF standards alone "in substance" in the classification of a safe third country is incompatible with the protection concept of the CSF, since the status rights under the CSF are legally mandatory and may not be undercut.
  6. In the border procedure, Member States are fully bound by fundamental and human rights, because they exercise effective control over persons.
  7. Both the screening procedure and the border procedure presuppose a refusal of entry because they must take place before entry. Such a refusal of entry is not possible at the internal border, which is why the non-entry fiction and with it the border procedure are also excluded.
  8. A border procedure necessarily takes place before entry, so the possible places where such a procedure can take place are limited. Therefore, procedures must take place in a narrowly localized area, so that border procedures without deprivation of liberty (= detention) should not be possible according to the case law of the Court of Justice of the European Union and the European Court of Human Rights. The regulatory system of the Common European Asylum System is also based on this.
  9. Even where border procedures do not directly violate fundamental and human rights, they make rights violations particularly likely because basic standards such as legal protection and humane accommodation cannot be met in camps at the external border.
  10. The EU's Fundamental Rights Agency also considers the human rights challenges in external border camps "almost insurmountable."
  11. Effective legal protection is, according to the Court of Justice of the European Union and in the light of the Charter of Fundamental Rights of the European Union, on the one hand necessary for the protection of the individual, and on the other hand also necessary to ensure the functioning of the system and to guarantee a legally correct implementation of the legal requirements - and as a result the rule of law.


On April 22, I – Erik Marquardt (MEP) – with the support of the LAG Europa in Berlin organize a Europabrunch. There we will inform about the current developments in European asylum policy. In addition, we will take a look at European climate policy on the occasion of Earth Day. 

The event starts at 10 a.m. and is scheduled to last three hours, leaving enough time for an extensive brunch. In the first part, Erik Marquardt will inform about the current developments in European asylum policy and discuss questions afterwards.

Also this year are already over 500 people died during the crossing of the Mediterranean Sea. At the same time, the methods by which Sea Rescue is prevented, more and more undignified. Emergency calls are often no longer answered, civilian rescue ships are sent on days-long odysseys and militias in civil war countries are paid to ward off refugees. Human rights at the EU's external borders are in a bad way. What is the situation, what should happen and what are the chances or dangers of the currently discussed reform of the European asylum system? We will talk about this in the first part of the brunch.

After a break, we then come to the second thematic block:

However, not only in the area of migration are there currently major changes, but also in the area of energy and climate policy. Therefore, I am pleased that we can welcome my colleague from the European Parliament Michael Bloss for the second half of the event. The European Green Deal is the most ambitious climate protection project we have ever had in Europe. Michael is committed to the implementation and defense of these climate targets in the European Parliament. This includes negotiations on CO2 prices, as well as the end of the combustion engine. Thanks to this commitment, despite a short hiccup, we were finally able to celebrate the end of the combustion engine at the end of March. Nevertheless, we must continue to fight for a climate-friendly future for the EU, because the discussions show how difficult it is to make progress on climate policy issues. The question remains: How can we create solutions for a climate-friendly Europe?

In order to get to grips with current events and to report on our work as members of parliament, I hereby invite you, together with the LAG Europa, to the Europabrunch on April 22 at 10 am in Berlin. 

The program: 

  1. Lecture Erik Marquardt on the current asylum and migration policy – where do we stand, what is just decided and what is still to come 
  2. On the occasion of Earth Day: Panel on European Climate Policy with Michael Bloss and Helena Marschall from Fridays For Future


Kin Za, KrausnickstraÃe 23, 10115 Berlin

Date and time: 


10 – 1 pm 


Please register by April 20 for on-site participation. REGISTRATION CLOSED

Vote on the Common European Asylum System

Today, we members of the Interior Committee voted on the parliamentary positions on four dossiers of the Commission presented in September 2020. Migration and Asylum Pact off. All four were adopted in committee. Specifically, the European Parliament’s position on the screening regulation, the amended asylum procedure regulation, the regulation on asylum and migration management and the crisis regulation. 

The negotiations have been protracted and have shown that the heated debate on migration issues makes it difficult to agree on solution-oriented positions. Unfortunately, there is no reason to believe that radical tightening of the asylum law will improve the situation for those seeking protection or for member states and municipalities. There is still a risk that the asylum reform will lead to excessive bureaucracy, processes that violate human rights, and more overburdened reception systems than the current system.

The creation of a common European asylum system was one of Ursula von der Leyen's central projects in her candidacy for Commission President in 2019. At the time, I supported this project. Assessment of the pact dispensed. 

1 Regulation on Asylum and Migration Management (AMMR)

The Commission proposes in the Regulation on asylum and migration management before, the replace current Dublin system and introduce a new responsibility-sharing mechanism between member states. A The proposal focuses on increasing the number of returns. The central problem of the Dublin system is not to be solved – the country of first entry is to remain responsible for asylum procedures. For this regulation, rapporteur Thomas Tobé (EPP) has submitted his Draft report presented to the European Parliament's Committee on Internal Affairs (LIBE) in October last year. 

The Parliament's position contains many positive elements and significant improvements compared to the Commission's proposal – and if implemented as proposed by Parliament, also significant improvements over the status quo. 

After arrival and registration, it is determined which member state is responsible for processing the asylum application. There are new, additional criteria for this allocation, which are intended to relieve the states at the external borders. In addition, there is to be a mandatory solidarity system in which all states participate. The Commission has proposed various forms of solidarity. In the solidarity system in the parliamentary version, improvements will be made to ensure that resettlement, i.e. admission by another EU country, is considered a prioritized procedure.

This would be much more reliable and efficient than the ad hoc solidarity that has largely failed repeatedly in recent years. For us Greens, the demand of the parliament for an immediate redistribution of people rescued from distress at sea is a great success. This could help to end the cruel delay of sea rescue and port blockades. Overall, it can be assumed that the AMMR will not seriously solve the fundamental problems of the European asylum system, as it is unfortunately unrealistic after the experiences of the last years that EU states implement European, human or fundamental rights in asylum policy in such a way that one can assume a quick return to the rule of law. However, an implementation of the parliamentary proposal on AMMR would at least offer some practical improvements and would not have any disadvantages. Therefore, I voted in favor of it. 

2. asylum procedure regulation (APR)

In 2016, the Commission issued a Proposal for the Asylum Procedure Regulation published and although the parliament in 2018. his report the member states were unable to reach an agreement. The changes presented in 2020 in the Asylum Procedure Regulation are now aiming to Require member states to use border procedures and to significantly expand the scope of the directive. 

The core of the proposal is that a large part of the asylum seekers should remain at the border for the processing of the asylum applications in so-called border procedures. These border procedures are not asylum procedures in the true sense. This can lead, as in Moria, to mass camps at the external borders or to the creation of detention centers, as they have already been put into operation in Greece on the islands as pilot projects. 

As rapporteur for boundary procedures I have an implementation report for the European Parliament. It becomes clear that border procedures severely restrict the fundamental and procedural rights of asylum seekers and that the intended goals are not achieved in most cases. The rapporteur for the Asylum Procedure Regulation, Fabienne Keller of the Liberals has expressed her position on the APR presented to the Interior Committee in October 2021. Together with the Social Democrats and the Left, we Greens clearly opposed mandatory border procedures at the beginning of the parliamentary deliberations.

While the Parliament’s position represents an improvement over the Commission’s proposal, it still contains elements that would massively worsen the situation of protection seekers. In particular, the application of a regulation on border procedures could lead to many people being processed at the external borders and sent back without adequate examination of their application. A current example from Germany of the problematic nature of such border procedures is the Case of 35-year-old Mohammad D.,who was deported from Frankfurt am Main to Iran, although it is actually not allowed to deport to Iran at the moment.

Moreover, it is simply not comprehensible how such a system would avoid overburdening external border states. The consequence of implementing the extension of border procedures and the introduction of additional procedures would therefore contribute to external border states turning away from the CEAS and presumably resorting to human rights violations and other deterrent measures again.

The position of the Parliament also contradicts the Charter of Fundamental Rights and the ECJ judgment in Gnandi case, as it does not provide for automatic suspensive effect for first-instance appeals. Specifically, there is a risk here that people will be deported to third countries before their negative asylum decision is reviewed by a court. This also entails the risk of violating the principle of non-refoulement. That is why I voted against the Asylum Procedure Regulation. It should be noted that much of the negotiating mandate vis-à-vis the Council stems from Parliament's position in 2018. At that time, we voted in favor of this position.

3. screening regulation

With the screening regulation the Commission would like to introduce an additional step for asylum seekers before they can access the asylum system. The screening process would require member states to conduct registration, health and security checks in a short procedure. In addition, according to the Commission's proposal, the decision at the end of the screening procedure should not be subject to legal challenge, which would encourage arbitrary and unfair treatment of protection seekers. With the border procedure described above in the Asylum Procedure Regulation, there would be a risk that protection seekers would be kept in a legal no-man's land for a long time and also remain locked up for a long time. 

The Screening Regulation is the only dossier of the Pact that is part of the Schengen acquis but linked to the Common European Asylum System. The Parliament has been dealing with the dossier since the rapporteur Birgit Sippel from the S&D presented her Report presented to the Interior Committee in November 2021. The Council has adopted a position on screening and is ready to enter into inter-institutional negotiations.

Screening includes the proposal of a fundamental rights monitoring mechanism at the external border, which is very important to prevent the current systematic violations of the human rights of people fleeing. 

Member States would be required to screen persons arriving at the external borders and also to identify particularly vulnerable persons among them in order to provide them with appropriate assistance. 

Combined with a surveillance mechanism with a broad scope and high standards of independence, this procedure would lead to less chaos and fewer human rights violations, but also to greater security and the rule of law at the external borders. In addition, audits would take place to prevent potential dangers to refugees and to combat, for example, human trafficking and organized crime.

An effective screening system would help register protection seekers quickly, distribute them rapidly, and address current human rights violations such as pushbacks or enforced disappearances. 

Parliament's position on screening is, on balance, an improvement over the Commission's original proposal and, if implemented as Parliament envisages, would lead to faster registration, shorter detentions, and better standards at the external borders. Moreover, in my view, the regulation would provide an important response to systematic crimes at the external borders. That is why I voted in favor, my group abstained. 

4. crisis regulation 

Thanks to the Temporary Admission Directive (so-called "mass influx directive" / TPD), we have an EU instrument that has largely proven its worth in admitting millions of Ukrainians:inside the EU since the Russian invasion of Ukraine. The Proposal of the Commission in the  Regulation on the management of crisis situations and situations of force majeure Provides for the abolition of this very directive on temporary admissionwhich would cause massive complications in the current situation.

But this regulation is also problematic in other respects, because the Commission wants to use it to allow various deviations from the minimum standards in crisis situations, which would further undermine the right of asylum. In doing so, a Member State would have to ask the Commission to determine that such a crisis situation exists. When a crisis might exist is not further defined, but the introductory remarks mention the situation at the Turkish-Greek border in March 2020 as well as the Corona pandemic. Due to the unclear definition, there is a risk that member states could instrumentalize the regulation to curtail the right to asylum.

Since the rapporteur Juan Fernando López Aguilar (S&D). his position on the Crisis Regulation to the Home Affairs Committee in November 2021, many discussions took place to ensure a balance between measures to strengthen solidarity in crisis situations (a priority for us Greens) and exemptions from the rules of the EU asylum system in normal circumstances.

Thanks to the work of the progressive groups, there are some good elements in the Parliament's position: the mandatory redistribution of protection seekers in crisis situations, the maintenance of the TPD, a new system of rapid recognition (prima facie approach) for those arriving with clear protection needs (such as Syrians:ins in 2015-2016), and the central role for the Commission in the classification as a crisis situation.

However, the Parliament's position also established serious derogations from the rules, which allow for long detention at the external border in a crisis situation and further worsen the situation of asylum seekers. Although I see the positive elements, I abstained from voting because in my opinion the derogations are not a solution to the current situation at the EU's external borders, but make the problem worse.

Mass deaths are increasingly becoming a political failure of the EU

On Wednesday, members of the European Parliament will debate the recent cases of people who drowned while fleeing across the Mediterranean Sea. In recent weeks, it has become apparent that rescues are being deliberately delayed and that many people could be saved. For example, on Sunday there was a shipwreck in which Italian authorities did not initiate a rescue from a ship in distress for more than 24 hours, even though ships were nearby. Thirty people died, and only 17 were rescued. At least 383 people have already died fleeing the Mediterranean this year.

The mass deaths in the Mediterranean Sea are increasingly becoming a political failure of the EU. On Sunday, 30 people drowned again because no rescue was initiated for more than 24 hours after their distress call. There would have been many ways to save the people in time, but the Italian authorities let them die.

Victim of failure to render assistance

The people have not only become victims of boat accidents, they are victims of a failure to provide assistance. If EU states accept the death of people on the Mediterranean Sea for their political goals, the EU might as well declare moral insolvency. EU states are obliged under international law to rescue people in distress at sea. But they should also be proud of saving human lives. Instead of finally facing up to their responsibility and rescuing people in distress at sea with all the means at their disposal, aid organizations are being harassed.

The dying can come to an end. In addition to sea rescue, there must be safe and legal escape routes, a structured EU asylum system, fairer distribution and a serious fight against the causes of flight. The EU Commission must give up its blockade on funding sea rescue. Those who claim to want to prevent dying must not block the allocation of funds for sea rescue. You can find my speech in parliament here.

More than 60 dead: "People could have been saved.“

After the accident of a boat off the coast of Calabria with more than 200 people on board, the search for survivors continues. More than 60 bodies have already been recovered. 

The boat departed from Turkey, bypassed Greece because refugees are illegally turned back and mistreated there, and headed for Italy, hundreds of kilometers away. Long before the accident, Frontex knew about the boat, but no coordinated rescue was initiated. The people could have been saved, they are our dead.

Due to the European foreclosure policy not less people have to flee, they only take more and more dangerous ways. But instead of changing the policy and organizing the asylum policy in a humane way, the chaos and the dying continue. It is no use pointing all fingers at others and pretending that Europe has nothing to do with these disasters. The trafficking gangs are criminal, but our response must no longer be to commit even greater crimes and accept deaths.

It is shameful that people drown because this is supposed to deter others from fleeing. This year alone, at least 295 people have already died on the run in the Mediterranean – and it is not even March.

Rescue calls are ignored

In many cases, distress calls are no longer responded to. When Frontex aircraft find boats in distress, the border protection agency no longer informs the surrounding ships that could quickly rescue them, but instead lets Libyan Islamist militias take the people to camps where women are raped and men tortured.

That EU states do not fund a sea rescue mission is shameful. That states like Italy attack civilian sea rescue for filling this gap is a scandal. The Italian government must stop harassing sea rescue NGOs. 90% of people come ashore in Italy without help from civilian sea rescue organizations.

The sea rescue is accused of bringing more people to Europe. In this particular case, this is true, because the men, women and children could have arrived in Europe alive thanks to the sea rescue. Now their bodies lie on Italian beaches.

We need a serious fight against the causes of flight, a fair and solidary distribution of refugees in the EU and safe and legal escape routes to the European Union. If the EU states don't understand this, hundreds of people will still drown in the Mediterranean this year and that would be a European disgrace."

The call for new fences is the capitulation to the real challenges

The European Council held a special session on refugees and migration. The focus, not for the first time, is on measures to combat symptoms, compartmentalization, and externalization. The negotiations on the new European Asylum Pact, meanwhile, still do not seem to offer a solution to the mistreatment of refugees at the external borders and the lack of solidarity among the member states. My briefing on the current state of negotiations on the asylum pact in the context of the EU Special Council can be found here.

Most EU member states focus on symbols and symptom control in migration policy. The consequences are chaos at the external borders, human rights violations, and a disorderly, undignified asylum system in large parts of Europe. Instead of reducing the number of refugees by seriously combating the causes of flight, the focus is on isolation, deportation and deterrence. In several EU states, this has led to systematic crimes against refugees.

Fences don't stop people from escaping...

Conservatives, in particular, should not lose themselves in sham debates. The call for ever new fences against a supposedly unprotected external border unsettles the population. Fences do not stop people from fleeing. Who is eligible for protection or not, should not be decided by a barbed wire fence, but by a procedure based on the rule of law. Those who call for new fences should also explain that fences do not help EU countries to continue to receive asylum applications from people at fences. If we want to know who is coming to us, the pushbacks should stop first, because they lead to hardly anyone being registered.

Neither new fences nor the migration pact will prevent the EU states from finally taking their responsibility for a humane and orderly asylum policy seriously. Those who only call for new fences are capitulating to the real challenges of our time. Instead of raising the fight against asylum seekers to ever more inhumane levels, the EU states must finally take responsibility for the distribution of asylum seekers in Europe, for sea rescue in the Mediterranean, and for combating the causes of flight.

Question to the Commission on pushbacks from Italy to Greece

A week ago Lighthouse Reports published a report on the results of their research on pushbacks on tourist ferries from Italy to Greece. They found evidence that asylum seekers, including children, are held in unofficial prisons – sometimes handcuffed – during the crossing in the belly of passenger ships. SRF and ARD Monitor were also involved in the research and have reported on it in television reports. 

On January 25, together with five other Green MEPs, I submitted a written question to the European Commission. I would like to know to what extent these illegal pushbacks from Italy to Greece are compatible with EU asylum law, and what follow-up investigations are planned from the Commission to investigate this matter. Another question is about the bilateral readmission agreement between Italy and Greece from 1999 and whether this agreement is at all in line with the EU acquis. 

You can find my collected written questions to the Commission and the answers here.

My request

Lighthouse Reports, together with SRF, ARD Monitor, Al Jazeera, Il Domani and Solomon, published a report on January 18, 2023, documenting the practice of illegal pushbacks on passenger ships from Italy to Greece. Evidence shows that asylum seekers apprehended by Italian authorities in Adriatic ports are not able to claim asylum upon arrival, but are detained in port and then pushed back to Greece. Reports from individuals of Afghan, Syrian, or Iraqi origin indicate that they have been detained, handcuffed, and confined in confined spaces in segregated facilities on passenger ships during their deportation from Italy to Greece. 

  1. In the European Commission's view, to what extent is this practice compatible with the EU acquis on asylum?
  2. Is the bilateral readmission agreement between IT and GR compatible with the EU acquis?
  3. What follow-up action does the European Commission intend to take following the above report?

Migration Day 2022

On December 18, 1990, the UN Migrant Workers Convention adopted by the UN General Assembly. It is the primary international standard against which governments should measure their national legal protections. Unfortunately, Germany has not yet ratified the Convention.

BIPoC from Ukraine welcome?

On December 10, 2022, together with PxP Embassy e. V. a Conference on the situation of third-country nationals in Germany and the federal states. You can find the livestream here. Together with representatives of civil society, politics and affected BIPoC people from Ukraine, we discussed the current situation, possible solutions and future perspectives. 

The EU has taken in 4.7 million refugees 

Since Russia's invasion of Ukraine, more than one million people in Germany have now been able to reach safety. Through the first-time activation of the "Mass Inflow Directive" of the European Council, the EU has been able to create a common solution for people fleeing war, so that they have a safe residence perspective and care quickly and without bureaucracy. This Temporary Protection Directive has existed since 2001, but has never been activated before. The directive allows refugees unbureaucratic access to social benefits, health care, labor market access and free choice of residence. Thanks to its application, the Dublin Regulation does not apply, which means that refugees do not have to apply for asylum in the country where they first enter, as is usually the case, but can move freely within the EU. This is a great success for the EU and shows that when there is political will, uncomplicated solutions are quickly found. The EU has achieved an enormous feat of strength and over 4.7 million People received from Ukraine.

Third country nationals are excluded 

However, one group of people has been excluded: the so-called third-country nationals. For these people without Ukrainian passports but residing in Ukraine, other regulations have been created – many are to be deported. They are excluded from temporary protection for war displaced persons, and this despite the fact that they had to flee from the same war. According to the IOM, among the nearly five million refugees are approx. 500.000 Third-country nationals who have fled Ukraine. They have often had very different experiences than Ukrainian refugees and have already had traumatic racist and discriminatory experiences at the borders. Many of them were pulled out of trains as the only PoC and were denied border crossings. Denies. This is because the Mass Influx Directive primarily provides for the protection of Ukrainian nationals, but there is an explicit recommendation by the Council to extend the circle of beneficiaries of protection to third-country nationals and stateless persons as well. However, since the EU cannot grant residence status to refugees, the national authorities must transpose the directive into national law; in Germany, this is the Federal Ministry of the Interior. 

Implementation of the mass inflow directive in Germany

With the application of para. 24 Right of residence Germany has implemented the Mass Influx Directive almost 1:1, except for the recommendation to extend the group of beneficiaries of protection to third-country nationals and stateless persons. Third-country nationals can also apply for temporary protection, but unlike Ukrainians, they are examined to determine whether they can safely return to their country of origin, regardless of whether their center of life was in Ukraine or not. If it is decided that a return to the country of origin is possible, the affected persons receive a negative residence decision and are thus obliged to leave the country. They are threatened with deportation and illegalization, even though they fled the same war as everyone else. 

The Netherlands does it differently

Most EU countries have implemented the mass influx directive in a similar way to Germany. However, the fact that it can also be done differently can be seen in the example of the NetherlandsHere, even those who had only a temporary residence permit in Ukraine, such as student visas, fall under the protection of the mass influx directive. Here, double standards are applied and a racist division of two classes of refugees is created. There should be equal rights for all people fleeing from the same war in Ukraine. 

In the absence of a regulation from the federal government, Berlin creates an interim solution 

The Berlin state government, as well as Hamburg and Bremen, has attempted a Temporary solution for third-country nationals. By extending the right of residence from 90 days to an additional six months, third-country nationals should be able to meet the qualifications for other visas, e.g.: Student visas. This is already a step in the right direction, but the period is too short to be a real chance for many people to get another residence title. For a student visa, for example, a language level of C1 is necessary, as well as a blocking amount of about 10,000€, hard to manage in six months. Furthermore, our discussions have shown that there is an enormous difference between political will and reality at the authorities.

Authority madness

Those affected describe a back-and-forth from authority to authority, employees who are not up to date with the latest regulations, and deportation notices that are served even though a six-month extension has already been issued. In addition, original documents are often required, but these have been lost during the flight or cannot be obtained because the Ukrainian authorities do not work as usual; copies and scans are often not accepted. If §24 were applied to all refugees from Ukraine, an enormous amount of resources would be freed up on the part of German authorities and NGOs. These could support the refugees in their arrival and integration instead of spending their energy navigating the bureaucratic jungle. It would also mean a great reduction in psychological stress for people who have just fled a war, as well as give them a chance to arrive in Germany. Jian Omar, a member of the Berlin House of Representatives, made it clear to us at the panel, however, that it is already pushing hard for a follow-up solution in the state parliament right now. Misbah Khan and Hakan Demir, members of the Bundestag, have pledged to keep up the pressure at the federal level to find a solution to the situation. 

Double standard – Why?

According to UNHCR 4,776,606 people registered for temporary protection in EU countries. Of these, Germany has taken in over one million refugees. According to the BMI, approx. 29.000 Third-country nationals. This means that no 3% of the people from Ukraine in Germany are third-country nationals. So we are talking about a very small number of people for whom life is made very very difficult. Moreover, most of them have been students in Ukraine. Many of them in the medical field – a field that desperately needs skilled workers. So one wonders why there is a need to differentiate here. An overview of the program, the guests and the contents can be found at here. The conference was broadcast live and recorded